In Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky v. State of Idaho, (ID Sup. Ct., Jan. 5, 2023), the Idaho Supreme Court in a 3-2 decision upheld three Idaho statutes banning abortions. The majority summarized its decision in part as follows:
The Idaho Constitution does not contain an explicit right to abortion. Nevertheless, Petitioners argue that certain provisions implicitly enshrine abortion as a right entitled to heightened protection from the legislature’s broad power to regulate conduct.....
For the reasons discussed below, we cannot read a fundamental right to abortion into the text of the Idaho Constitution.
The Inalienable Rights Clause in Article I, section 1 of the Idaho Constitution, which lists the rights to life, liberty, and property, provides the textual basis for the recognition of implicit fundamental rights. Indeed, Article I, section 21, while not purporting to be a repository of implicit rights, provides that the listing of rights in the Idaho Constitution “shall not be construed to impair or deny other rights retained by the people.” The Inalienable Rights Clause was framed at Idaho’s constitutional convention in 1889 and ratified by the people of Idaho later that same year. Thus, for us to read a fundamental right into the Idaho Constitution, we must examine whether the alleged right is so “deeply rooted” in the traditions and history of Idaho at the time of statehood that we can fairly conclude that the framers and adopters of the Inalienable Rights Clause intended to implicitly protect that right.
When we apply that test to this dispute, there simply is no support for a conclusion that aright to abortion was “deeply rooted” at the time the Inalienable Rights Clause was adopted....
Importantly, nothing about this decision prevents the voters of Idaho from answering the deeply moral and political question of abortion at the polls....
Additionally, as explained below, we conclude that the Total Abortion Ban, 6-Week Ban, and Civil Liability Law each pass the familiar test for determining the constitutionality of most legislation: “rational-basis” review. Under that form of review, each of these laws is constitutional because it is rationally related to the government’s legitimate interest in protecting prenatal fetal life at all stages of development, and in protecting the health and safety of the mother.
Justice Zahn and Justice Stegner each filed a dissenting opinion. [Thanks to Dusty Hoesly for the lead.]
